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8.2 On the other aspect, whether a decision taken on an application under section 340 of the New Code was a decision in exercise of its criminal jurisdiction, Dr. Arun Mohan submitted that it was not so, as that stage would arise, only when, a complaint is referred to the Magistrate and he takes cognizance of the same by issuing process to the accused. In other words, it was his submission that, at the stage at which a court takes a decision, to either institute a complaint, or not to institute a complaint; there being no adjudication of guilt or innocence of the accused, it would not fall within the exclusionary part of clause 10 of the Letters Patent; which prohibits appeals, where a court exercises criminal jurisdiction. The submission was thus, that the court, at that juncture will only decide whether it is expedient in the interest of justice to initiate an inquiry against the person qua whom, the application under Section 340 of the New Code is directed. The decision is one relating to the protection of the court's process and not to adjudicate upon the guilt or innocence, so as to attract the exclusion/prohibition adverted to in clause 10 of the Letters Patent. It is only when, the Magistrate takes cognizance under Section 190 of the New Code and issues process, that the criminal jurisdiction gets triggered for the purposes of attracting the exclusion/prohibition contained in clause 10 of the Letters Patent.

The Reference Court, after making inquiries, came to the conclusion that a complaint be filed against them under Section 340 of the New Code. The matter was carried right till the Supreme Court. One of the principal issues raised before the Supreme Court was that, the principles of natural justice had been given a go-by as the Reference Court had proceeded to make an inquiry without giving an opportunity to the appellants of being heard in the matter, and thus, causing grave prejudice to them. The Supreme Court in this context examined the attributes of the decision which is taken by the court when dealing with an application under Section 340 of the New Code. After a detailed deliberation, the Supreme Court came to the conclusion that at the stage of taking a decision on an application under Section 340 of the New Code, the court does not decide the guilt or innocence of a person, the scope of its decision is confined to arriving at a conclusion, which is that, based on the material available before it, whether the matter requires inquiry by a criminal court, and if it does, would it be expedient in the interest of justice to have it inquired into. It thus, rejected the contention of the appellants before it, that the decision to initiate proceedings against them violated principles of natural justice. While reaching this conclusion, the Supreme Court made some crucial observations with regard to the scope of the Section. These observations being relevant are extracted hereinafter:

22. It must be noticed that both in Mt. Rampati Kuer as well as Bhatu Sadu Mali case, the High Court, in revision, was dealing with the orders of the appellate court passed under section 476B of the Old Code which is equivalent to Section 341 of the New Code and not those passed under Section 476 of the Old Code (now Section 340).

23. Similarly, reliance was placed on the judgment of a Single Judge in the case of Jose Kuruvinakunnel. In this case the Munsiff's court, in which the suit was being tried, an application under Section 340 of the New Code was also filed. The Munsiff's court dismissed both the suit as well as application under Section 340 of the new Code. The plaintiffs filed an appeal against the said judgment of the Munsiff's Court with the District Court and a revision in respect of the order dismissing the plaintiff's application under Section 340 of the New Code. Qua the said application a preliminary objection was taken that a revision under Section 115 of CPC would not lie. The learned Single Judge accepted this limb of the argument by holding that proceedings under Section 340 of the New Code though initiated before a civil or a revenue Court are essentially criminal in nature, and therefore, against an order passed under Section 340 or under Section 341 of the New Code, a revision petition under Section 115 of the CPC, would not lie. The learned Single Judge dismissed the revision petition, on an additional ground, which was that, both the Munsiff's Section 439 enables the High Court to interfere in revision in the case of any proceedings, the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge. The expression " or other proceedings" must clearly be limited by the context. Nobody would suggest that under Section 439 a criminal Court could revise the orders of a civil Court in a civil matter. But it may well be that Section 439 goes rather further than Section 435 which refers to calling for the record of any proceeding before any inferior criminal Court. Whether or not in this case the order was technically made by an inferior criminal Court, I am clearly of opinion that it was an order made by an inferior Court exercising, under Section 476B, jurisdiction in a criminal matter. In my opinion not only does the procedure relating to criminal appeals apply to a proceeding under Section 476B, but any order made under that section can be revised by the High Court under Section 439, and the provisions of Section 115 of the Civil Procedure Code do not apply to such a case. I would, therefore, answer the first question submitted to us by saying that applications in revision from an order under Section 476B by any Court to the High Court may be heard and decided in accordance with the provisions of Section 439 of the Criminal Procedure Code.....‖ (emphasis supplied) court and the appellate court in their wisdom had come to the conclusion based on the material placed before them that, it was not expedient in the interest of justice to initiate proceedings under Section 340 of the New Code and hence such findings could not be interfered with, by a court exercising revisionary jurisdiction.

In our view, a decision either way on an application filed under Section 340 of the New Code decides valuable rights of parties and, therefore, an appeal would lie under clause 10 of the Letters Patent, as applicable to this Court.

33. To sum up: (i). the expression ―other than the High Court‖, appearing in Section 341 of the New Code would not disable an aggrieved party to prefer an appeal, if it is otherwise maintainable, under other statutes and provisions in law; and (ii) the decision taken on an application under Section 340 of the New Code, involves only a formation of an opinion as to whether or not a complaint should be filed. At the stage of formation of such an opinion, the court does not exercise criminal jurisdiction. Therefore, an appeal under Letters Patent would be available to the aggrieved party in this case.